NATIONAL MEASUREMENT AMENDMENT BILL 2008

i National Measurement Amendment Bill 2008 No. , 2008

Contents

Short title ............................................................................................ 1

Commencement .................................................................................. 1

Schedule(s) ......................................................................................... 1

Schedule 1--Trade measurement

National Measurement Act 1960

Schedule 2--Application and transitional provisions

148

Part 1--Preliminary

148

Part 2--General application provisions

149

Part 3--Marks and verification generally

151

Part 4--Permits

153

Part 5--Servicing licences and public weighbridge licences

156

Part 6--Utility meters

162

Part 7--Miscellaneous

166

National Measurement Amendment Bill 2008 No. , 2008 1

A Bill for an Act to amend the law in relation to

measurement, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the National Measurement Amendment

Act 2008.

2 Commence ment

This Act commences on 1 July 2009.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 3

Schedule 1

Trade measurement

National Measurement Act 1960

1 Subsection 3(1)

Insert:

approved pattern, in relation to a measuring instrument, means a

pattern approved for the measuring instrument under section 19A

that:

(a) is currently in force; or

(b) has expired or been cancelled (but not withdrawn) and was in

force when the measuring instrument was first verified.

2 Subsection 3(1)

Insert:

AQS mark has the meaning given by section 18JJ.

3 Subsection 3(1)

Insert:

AQS sampling procedures are sampling procedures prescribed for

the purposes of Subdivision 3-C of Division 3 of Part VI.

4 Subsection 3(1)

Insert:

AQS test procedures are test procedures prescribed for the

purposes of Subdivision 3-C of Division 3 of Part VI.

5 Subsection 3(1)

Insert:

AQS threshold is the threshold prescribed for the purposes of

Subdivision 3-C of Division 3 of Part VI.

6 Subsection 3(1)

Insert:

Schedule 1 Trade measurement

4 National Measurement Amendment Bill 2008 No. , 2008

article includes a substance.

7 Subsection 3(1) (paragraph (b) of the definition of

Australian legal unit of measurement)

Omit "subsection 7B(1)", substitute "section 7B".

8 Subsection 3(1)

Insert:

automated packing machine means a machine that follows a

pre-determined program for automatically measuring articles in

pre-determined quantities as part of the packing process.

9 Subsection 3(1)

Insert:

business premises means premises or a part of premises:

(a) used for the importation, packing, storage or sale of articles

or utilities sold, or to be sold, by measurement; or

(b) on which a measuring instrument is used for trade; or

paragraph (a) or (b);

but does not include premises or a part of premises occupied as a

residence or for residential accommodation.

10 Subsection 3(1)

Insert:

business vehicle means a vehicle:

(a) used for the transportation of articles or utilities sold, or to be

sold, by measurement (whether packed in advance ready for

sale or otherwise); or

(b) on which a measuring instrument is used for trade; or

sold, by measurement; or

(d) used for activities incidental to the uses mentioned in

paragraph (a), (b) or (c).

11 Subsection 3(1)

Insert:

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 5

controller, in relation to premises, a part of premises or a vehicle,

means the person apparently in control of the premises, the part of

the premises or the vehicle.

12 Subsection 3(1)

Insert:

earlier corresponding law means any of the following:

(a) the Trade Measurement Act 1989 of New South Wales;

(b) the Trade Measurement Administration Act 1989 of New

South Wales;

(d) the Trade Measurement (Administration) Act 1995 of

Victoria;

(e) the Trade Measurement Act 1990 of Queensland;

(f) the Trade Measurement Administration Act 1990 of

Queensland;

(g) the Trade Measurement Act 2006 of Western Australia;

(h) the Trade Measurement Administration Act 2006 of Western

Australia;

(i) the Trade Measurement Act 1993 of South Australia;

(j) the Trade Measurement Administration Act 1993 of South

Australia;

(k) the Trade Measurement Act 1999 of Tasmania;

(l) the Trade Measurement (Tasmania) Administration Act 1999

of Tasmania;

(m) the Trade Measurement Act 1991 of the Australian Capital

Territory;

(n) the Trade Measurement (Administration) Act 1991 of the

Australian Capital Territory;

(o) the Trade Measurement Act of the Northern Territory;

(p) the Trade Measurement Administration Act of the Northern

Territory;

and includes the regulations made under those Acts.

13 Subsection 3(1)

Insert:

evidential material means any of the following:

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6 National Measurement Amendment Bill 2008 No. , 2008

(a) any thing with respect to which an offence against this Act

has been committed or is suspected, on reasonable grounds,

to have been committed;

(b) any thing as to which there are reasonable grounds for

suspecting that it will afford evidence as to the commission

of any such offence;

suspecting that it is intended to be used for the purpose of

committing any such offence.

14 Subsection 3(1)

Insert:

inspector's mark means the mark allotted to a trade measurement

inspector by the Secretary under subsection 18MA(5).

15 Subsection 3(1)

Insert:

made available as a public weighbridge has the meaning given by

section 3A.

16 Subsection 3(1)

Insert:

marked: something is marked on a package if:

(a) it is marked on the package itself; or

(b) it is marked on a label attached to or enclosed with, but

visible within, the package.

17 Subsection 3(1)

Insert:

marking a measuring instrument with a verification mark has the

meaning given in subsection (5).

18 Subsection 3(1)

Insert:

measurement means a determination of number or physical

quantity, other than for descriptive purposes only.

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 7

19 Subsection 3(1)

Insert:

measuring instrument gives an inaccurate measurement has the

meaning given in subsection (6).

20 Subsection 3(1) (paragraph (b) of the definition of metric

system of measurement)

Omit "approved; and", substitute "approved.".

21 Subsection 3(1) (paragraph (c) of the definition of metric

system of measurement)

Repeal the paragraph.

22 Subsection 3(1)

Insert:

national group test procedures are test procedures with respect to

groups of packages prescribed for the purposes of Subdivision 4-B

of Division 4 of Part VI.

23 Subsection 3(1)

Insert:

national instrument test procedures are procedures for testing

measuring instruments determined by the Minister under

subsection 18GG(2).

24 Subsection 3(1)

Insert:

national sampling procedures are sampling procedures prescribed

for the purposes of Subdivision 4-B of Division 4 of Part VI.

25 Subsection 3(1)

Insert:

national single article test procedures are test procedures with

respect to single packages prescribed for the purposes of

Subdivision 4-B of Division 4 of Part VI.

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8 National Measurement Amendment Bill 2008 No. , 2008

26 Subsection 3(1)

Insert:

national test threshold is the threshold prescribed for the purposes

of Subdivision 4-B of Division 4 of Part VI.

27 Subsection 3(1)

Insert:

net measurement, in relation to an article, means the measurement

of the article disregarding any packaging or other thing that is not

part of the article.

28 Subsection 3(1)

Insert:

obliterate, in respect of a verification mark, means destroy, or

remove and destroy, a verification mark.

29 Subsection 3(1)

Insert:

package includes:

(a) a container, wrapper, confining band or other thing in which

an article is packed, or 2 or more articles are packed, for sale

as a single item; and

(b) anything around which an article is wound or wrapped, or 2

or more articles are wound or wrapped, for sale as a single

item.

30 Subsection 3(1)

Insert:

packed in advance ready for sale has the meaning given by

section 18HA.

31 Subsection 3(1)

Insert:

premises means:

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 9

(a) an area of land or any other place, whether or not it is

enclosed or built on; or

(b) a building or other structure.

32 Subsection 3(1)

Insert:

public weighbridge means a weighbridge that is made available as

a public weighbridge.

33 Subsection 3(1)

Insert:

public weighbridge licence means a licence granted under

section 18PB.

34 Subsection 3(1)

Insert:

public weighbridge licensee means a person to whom a licence is

granted under section 18PB.

35 Subsection 3(1)

Insert:

residential premises means premises, or a part of premises, that is

occupied as a residence or for residential accommodation.

36 Subsection 3(1)

Insert:

seize includes secure against interference.

37 Subsection 3(1)

Insert:

sell includes barter or exchange.

38 Subsection 3(1)

Insert:

servicing licence means a licence granted under section 18NB.

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10 National Measurement Amendment Bill 2008 No. , 2008

39 Subsection 3(1)

Insert:

servicing licensee means a person to whom a licence is granted

under section 18NB.

40 Subsection 3(1)

Insert:

servicing licensee's mark means the mark approved by the

Secretary for use by or on behalf of a servicing licensee in

verifying measuring instruments.

41 Subsection 3(1)

Insert:

shortfall, in relation to an article packed in advance ready for sale

that is not marked with an AQS mark, has the meaning given by

section 18JR.

42 Subsection 3(1)

Insert:

this Act includes the regulations and any other instrument made

under a provision of this Act.

43 Subsection 3(1)

Insert:

trade measurement inspector means:

(a) in relation to the exercise of a power or the performance of a

function or duty in circumstances prescribed under paragraph

18MA(3)(b)--a person appointed to a class of trade

measurement inspectors authorised to exercise that power or

perform that function or duty in those circumstances; and

(b) in relation to the exercise of a power or the performance of a

function or duty otherwise--a person appointed to a class of

trade measurement inspectors authorised to exercise that

power or perform that function or duty.

44 Subsection 3(1) (definition of use for trade)

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 11

Repeal the definition, substitute:

use for trade: a person uses a measuring instrument for trade if:

(a) the person is actually or apparently in control of the

measuring instrument; and

(b) the person uses it, or makes it available for another person to

use, for either or both of the following purposes:

(i) determining the consideration in respect of a

transaction;

(ii) determining the amount of a tax.

45 Subsection 3(1)

Insert:

utility means gas, electricity or water.

46 Subsection 3(1) (definition of utility meter)

Omit "Part VA", substitute "Part IV".

47 Subsection 3(1)

Insert:

utility meter verifier means a person appointed as a utility meter

verifier under section 18RA or 18RH.

48 Subsection 3(1)

Insert:

utility meter verifier's mark means a mark allocated to a person

appointed as a verifier in relation to utility meters under

section 18RA or 18RH for use by the verifier or its employees (if

any), when verifying utility meters.

49 Subsection 3(1)

Insert:

vehicle includes vessel, aircraft and any other means of conveying

persons or goods.

50 Subsection 3(1) (definition of verification)

Repeal the definition, substitute:

Schedule 1 Trade measurement

12 National Measurement Amendment Bill 2008 No. , 2008

verification, in relation to a measuring instrument, has the meaning

given by section 18GG.

51 Subsection 3(1)

Insert:

verification mark means:

(a) in relation to utility meters--a utility meter verifier's mark;

and

(b) in relation to any other measuring instrument:

(i) an inspector's mark; or

(ii) a servicing licensee's mark.

52 Subsection 3(1)

Insert:

verifier:

(a) in relation to utility meters--means a person who is

permitted to verify the utility meter under section 18GI; and

(b) in relation to any other measuring instrument--means a

person who is permitted to verify the measuring instrument

under section 18GH.

53 Subsection 3(1) (definition of verifying authority)

Repeal the definition.

54 Subsection 3(1)

Insert:

weighbridge means a measuring instrument that is of a capacity of

3 tonnes or more and has one or more platforms by the use of

which the measuring instrument is capable of determining the mass

of a vehicle or of livestock.

55 At the end of section 3

Add:

(5) A reference in this Act to a person marking a measuring

instrument with a verification mark includes the marking of the

measuring instrument itself, the affixing of a label to the measuring

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 13

instrument or the marking of a label affixed to the measuring

instrument.

(6) For the purposes of this Act, a measuring instrument gives an

inaccurate measurement if the measuring instrument does not

operate within the appropriate limits of error that are permitted

under the regulations.

(7) A reference in this Act to a particular provision or group of

provisions includes a reference to regulations made under that

provision or under any one or more of the provisions of that group

of provisions.

56 After section 3

Insert:

3A Meaning of made available as a public weighbridge

(1) A weighbridge is made available as a public weighbridge if:

(a) it is open for use by or on behalf of the public; or

(b) it is available for use for a charge.

(2) A weighbridge is not made available as a public weighbridge if

the weighbridge is used by a person who owns or who has

contracted to operate the weighbridge:

(a) for the purpose of determining the consideration in an

agreement between the person and another person; or

(b) for purposes that do not involve another person.

(3) The regulations may prescribe other circumstances in which a

weighbridge is taken not to be made available as a public

weighbridge for the purposes of this Act.

57 Paragraph 4(1)(e)

Repeal the paragraph, substitute:

(e) to provide for a national system of trade measurement;

58 Subsection 4(3)

Repeal the subsection.

59 After section 4A

Schedule 1 Trade measurement

14 National Measurement Amendment Bill 2008 No. , 2008

Insert:

4B Application of trade measure ment provisions

(1) Parts IV to XIII of this Act do not apply to a measurement, or an

instrument used for the purposes of a measurement, to determine

any of the following:

(a) charges relating to telephone calls or the use of internet

services;

(b) the fare payable for use of a taxi;

(d) tyre pressures;

(e) the expiration of time, or the calculation of time, for parking

a vehicle.

(2) Parts IV to XIII of this Act do not apply to a measuring instrument

that is an automated packing machine.

(3) Parts IV to XIII of this Act do not apply to a measurement for the

purposes of:

(a) reporting and disseminating information relating to

greenhouse gas emissions, greenhouse gas projects, energy

production and energy consumption under the National

Greenhouse and Energy Reporting Act 2007; or

(b) reporting and disseminating information relating to

greenhouse gas emissions or greenhouse gas projects under

any other law of the Commonwealth or of a State or

Territory; or

State or Territory.

60 Subsection 7B(1)

Omit "(1) The", substitute "The".

61 Subsection 7B(1)

Omit "issue written", substitute ", by legislative instrument, issue".

62 Subsection 7B(2)

Repeal the subsection.

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National Measurement Amendment Bill 2008 No. , 2008 15

63 Subsection 8A(1)

After "The Chief Metrologist may", insert ", by legislative instrument,".

64 Subsection 8A(3)

Repeal the subsection.

65 Part VA

Repeal the Part, substitute:

Part IV--Using measuring instruments for trade

Division 1--Overview of Part

18G Overview

Overview of Part

(1) Measuring instruments must be verified, used in a way that

gives an accurate measurement, and be accurate.

(2) Division 2 creates offences to deal with these matters.

(3) Division 3 establishes the system for verifying measuring

instruments.

Division 2--Requirements for use of measuring

instruments for trade

18GA Measuring instruments used for trade to be verified

Offence requiring fault element

(1) A person commits an offence if:

(a) the person uses a measuring instrument for trade; and

(b) the measuring instrument is not verified.

Penalty: 100 penalty units.

Schedule 1 Trade measurement

16 National Measurement Amendment Bill 2008 No. , 2008

Strict liability offence

(2) A person commits an offence if:

(a) the person uses a measuring instrument for trade; and

(b) the measuring instrument is not verified.

Penalty: 20 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) If:

(a) a measuring instrument is on premises, or on a part of

premises; and

(b) the consideration in respect of a transaction or the amount of

a tax is determined on those premises, or that part of those

premises;

it is presumed for the purposes of this section that the measuring

instrument has been used for trade on the premises or that part of

the premises unless the contrary is established.

(5) If:

(a) a measuring instrument is in or on a vehicle; and

(b) the consideration in respect of a transaction or the amount of

a tax is determined in or on that vehicle;

it is presumed for the purposes of this section that the measuring

instrument has been used for trade in or on the vehicle unless the

contrary is established.

18GB Installing unverified measuring instrume nts

Offence requiring fault element

(1) A person commits an offence if:

(a) the person installs in or on any premises or vehicle a

measuring instrument; and

(b) the measuring instrument is installed for use for trade; and

Penalty: 200 penalty units.

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 17

Strict liability offence

(2) A person commits an offence if:

(a) the person installs in or on any premises or vehicle a

measuring instrument; and

(b) the measuring instrument is installed for use for trade; and

Penalty: 40 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

18GC Supplying unverified measuring instruments

Offence requiring fault element

(1) A person commits an offence if:

(a) the person sells or otherwise supplies a measuring

instrument; and

(b) the measuring instrument is sold or otherwise supplied for

use for trade; and

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person sells or otherwise supplies a measuring

instrument; and

(b) the measuring instrument is sold or otherwise supplied for

use for trade; and

Penalty: 40 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Schedule 1 Trade measurement

18 National Measurement Amendment Bill 2008 No. , 2008

18GD Inaccurate use of measuring instrume nts

Offence requiring fault element

(1) A person commits an offence if the person:

(a) uses a measuring instrument for trade; and

(b) does so in such a way, or under such circumstances, that the

measuring instrument gives an inaccurate measurement or

gives other information (including a statement as to price)

inaccurately.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if the person:

(a) uses a measuring instrument for trade; and

(b) does so in such a way, or under such circumstances, that the

measuring instrument gives an inaccurate measurement or

gives other information (including a statement as to price)

inaccurately.

Penalty: 40 penalty units.

Offence requiring fault element

(3) A person commits an offence if:

(a) the person does, or fails to do, something in relation to a

measuring instrument; and

(b) the person's act or omission causes, or is likely to cause, the

measuring instrument to give an inaccurate measurement or

to give other information (including a statement as to price)

inaccurately when used for trade.

Penalty: 200 penalty units.

Strict liability offence

(4) A person commits an offence if:

(a) the person does, or fails to do, something in relation to a

measuring instrument; and

(b) the person's act or omission causes, or is likely to cause, the

measuring instrument to give an inaccurate measurement or

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 19

to give other information (including a statement as to price)

inaccurately when used for trade.

Penalty: 40 penalty units.

(5) Subsections (2) and (4) are offences of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

18GE Using or supplying inaccurate measuring instruments

Offence requiring fault element

(1) A person commits an offence if:

(a) the person uses a measuring instrument for trade; and

(b) the measuring instrument gives an inaccurate measurement or

gives other information (including a statement as to price)

inaccurately.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person uses a measuring instrument for trade; and

(b) the measuring instrument gives an inaccurate measurement or

gives other information (including a statement as to price)

inaccurately.

Penalty: 40 penalty units.

(3) If:

(a) a measuring instrument is on premises, or on a part of

premises; and

(b) the consideration in respect of a transaction or the amount of

a tax is determined on those premises, or that part of those

premises;

it is presumed for the purposes of subsections (1) and (2) that the

measuring instrument has been used for trade on the premises or

that part of the premises unless the contrary is established.

(4) If:

(a) a measuring instrument is in or on a vehicle; and

Schedule 1 Trade measurement

20 National Measurement Amendment Bill 2008 No. , 2008

(b) the consideration in respect of a transaction or the amount of

a tax is determined in or on that vehicle;

it is presumed for the purposes of subsections (1) and (2) that the

measuring instrument has been used for trade in or on the vehicle

unless the contrary is established.

Offence requiring fault element

(5) A person commits an offence if:

(a) the person sells or otherwise supplies a measuring instrument

for use for trade; and

(b) the measuring instrument gives an inaccurate measurement or

gives other information (including a statement as to price)

inaccurately.

Penalty: 200 penalty units.

Strict liability offence

(6) A person commits an offence if:

(a) the person sells or otherwise supplies a measuring instrument

for use for trade; and

(b) the measuring instrument gives an inaccurate measurement or

gives other information (including a statement as to price)

inaccurately.

Penalty: 40 penalty units.

(7) Subsections (2) and (6) are offences of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Division 3--Verification of measuring instruments

18GF Overvie w

Overview of Division

(1) This Division deals with the verification of measuring

instruments.

(2) Verification is defined in section 18GG. It is a process of

ensuring that measuring instruments operate accurately.

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 21

(3) Trade measurement inspectors, servicing licensees and

employees of servicing licensees are permitted to verify

measuring instruments (other than utility meters) (see

section 18GH).

(4) Utility meter verifiers are permitted to verify utility meters

(see section 18GI).

(5) Certain requirements must be met before a measuring

instrument may be verified (see section 18GK).

(6) This Division contains offences for persons who:

(a) use a verification mark when not permitted to do

so (see section 18GM); and

(b) sell or supply measuring instruments that have

been marked with a verification mark by a person

not permitted to do so (see section 18GN); and

(see section 18GO); and

(d) possess false verification marks (see

section 18GP); and

(e) fail to obliterate verification marks if a measuring

instrument's metrological performance is affected

by repairs (see section 18GQ).

18GG Meaning of verification

(1) A measuring instrument is verified if:

(a) either:

(i) a verifier is satisfied that the measuring instrument

complies with the requirements for verification set out

in section 18GK when tested in accordance with the

national instrument test procedures and the measuring

instrument is marked with a verification mark; or

(ii) if the measuring instrument is treated as one of a batch

under the national instrument test procedures--a verifier

Schedule 1 Trade measurement

22 National Measurement Amendment Bill 2008 No. , 2008

is satisfied that measuring instruments of that batch

comply with the requirements for verification set out in

section 18GK when tested in accordance with those

procedures and the measuring instrument is marked

with a verification mark; and

(b) if the instrument is of a class for which a re-verification

period is prescribed--the period since it was last verified or

re-verified does not exceed that re-verification period.

(2) The Minister may, by legislative instrument, determine the national

instrument test procedures.

(3) A re-verification period must not be prescribed for utility meters.

(4) The regulations may:

(a) prescribe circumstances in which a measuring instrument that

is treated as one of a batch under the national instrument test

procedures may be marked with a verification mark by a

person other than the verifier; and

(b) provide for the provision of labour, facilities and equipment

for the purposes of batch testing measuring instruments; and

taken to be marked with a verification mark.

18GH Who is pe rmitted to ve rify measuring instrume nts other than

utility meters?

(1) Subject to the limitations in this section, each of the following

persons is permitted to verify a measuring instrument other than a

utility meter:

(a) a trade measurement inspector;

(b) a servicing licensee;

Note 1:

Trade measurement inspectors are appointed under Part IX.

Note 2:

Servicing licensees are granted servicing licences under Part X.

(2) A trade measurement inspector of a particular class may verify any

measuring instrument that an inspector of that class is authorised to

verify.

(3) A servicing licensee may personally verify a measuring instrument

if:

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 23

(a) the measuring instrument is of a class of measuring

instruments that the licensee is licensed to verify; and

(b) the licensee is competent to verify the measuring instrument.

(4) An employee of a servicing licensee may verify a measuring

instrument if:

(a) the measuring instrument is of a class of measuring

instruments that the licensee is licensed to verify; and

(b) the employee is competent to verify the measuring

instrument.

18GI Who is permitted to verify utility meters?

A utility meter verifier may verify a utility meter.

Note:

Utility meter verifiers are appointed under Part XIII.

18GJ Register of verification marks

The Secretary must keep a register of prescribed particulars

relating to verification marks.

18GK Requirements for ve rification

The requirements for verification of a measuring instrument are:

(a) the measuring instrument must operate within the appropriate

limits of error that are permitted under the regulations; and

(b) the measuring instrument must be of an approved pattern.

18GL Standards of measure ments to be used for ve rification

(1) The determination of whether the requirements for verification

under section 18GK have been complied with must be made as

required by section 10.

(2) Subsection (1) does not apply if there is not an appropriate

standard of measurement in respect of which the measuring

instrument is to be verified.

Schedule 1 Trade measurement

24 National Measurement Amendment Bill 2008 No. , 2008

18GM Using a verification mark whe n not permitted to do so

Offence requiring fault element

(1) A person commits an offence if:

(a) the person marks a measuring instrument with a verification

mark; and

(b) the person is not permitted to do so.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person marks a measuring instrument with a verification

mark; and

(b) the person is not permitted to do so.

Penalty: 40 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

18GN Sale or supply of measuring instrume nt marked by someone

not permitted to do so

Offence requiring fault element

(1) A person commits an offence if:

(a) the person sells or otherwise supplies a measuring instrument

for use for trade, or uses a measuring instrument for trade;

and

(b) the measuring instrument is marked with a verification mark;

and

verification mark was not permitted to do so.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 25

(a) the person sells or otherwise supplies a measuring instrument

for use for trade, or uses a measuring instrument for trade;

and

(b) the measuring instrument is marked with a verification mark;

and

verification mark was not permitted to do so.

Penalty: 40 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

18GO Misleading marks

Offence requiring fault element--marking a measuring instrument

with a misleading mark

(1) A person commits an offence if:

(a) the person marks a measuring instrument; and

(b) the mark is not a verification mark but is likely to give the

impression that it is a verification mark.

Penalty: 200 penalty units.

Strict liability offence--marking a measuring instrument with a

misleading mark

(2) A person commits an offence if:

(a) the person marks a measuring instrument; and

(b) the mark is not a verification mark but is likely to give the

impression that it is a verification mark.

Penalty: 40 penalty units.

Offence requiring fault element--using, selling or supplying a

measuring instrument misleadingly marked

(3) A person commits an offence if:

(a) the person:

(i) uses a measuring instrument for trade; or

Schedule 1 Trade measurement

26 National Measurement Amendment Bill 2008 No. , 2008

(ii) sells or otherwise supplies a measuring instrument for

use for trade; and

(b) the measuring instrument is marked; and

impression that it is a verification mark.

Penalty: 200 penalty units.

Strict liability offence--using, selling or supplying a measuring

instrument misleadingly marked

(4) A person commits an offence if:

(a) the person:

(i) uses a measuring instrument for trade; or

(ii) sells or otherwise supplies a measuring instrument for

use for trade; and

(b) the measuring instrument is marked; and

impression that it is a verification mark.

Penalty: 40 penalty units.

Offence requiring fault element--possessing instrument for making

misleading mark

(5) A person commits an offence if:

(a) the person has an instrument or other thing in his or her

possession; and

(b) the instrument or thing is designed for making a mark on a

measuring instrument that is not a verification mark but is

likely to give the impression that it is a verification mark.

Penalty: 200 penalty units.

Strict liability offence--possessing instrument for making

misleading mark

(6) A person commits an offence if:

(a) the person has an instrument or other thing in his or her

possession; and

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 27

(b) the instrument or thing is designed for making a mark on a

measuring instrument that is not a verification mark but is

likely to give the impression that it is a verification mark.

Penalty: 40 penalty units.

(7) Subsections (2), (4) and (6) are offences of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

18GP Wrongful possession of an instrume nt for making a

verification mark

A person commits an offence if:

(a) the person has an instrument or other thing in his or her

possession; and

(b) the instrument or thing is designed for marking a measuring

instrument with a verification mark; and

with that verification mark.

Penalty: 200 penalty units.

18GQ Obligation on repair of measuring instrument

Offence requiring fault element

(1) A person commits an offence if:

(a) the person uses a measuring instrument for trade; and

(b) the person adjusts or repairs the measuring instrument, or

causes the measuring instrument to be adjusted or repaired;

and

metrological performance of the measuring instrument is

affected; and

(d) if the person causes the measuring instrument to be adjusted

or repaired--the adjustment or repair of the measuring

instrument is not performed by a servicing licensee or an

employee of a servicing licensee or, in the case of a utility

meter, by a utility meter verifier; and

(e) the person does not obliterate, or cause to be obliterated, any

verification mark that the measuring instrument bears.

Schedule 1 Trade measurement

28 National Measurement Amendment Bill 2008 No. , 2008

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person uses a measuring instrument for trade; and

(b) the person adjusts or repairs the measuring instrument, or

causes the measuring instrument to be adjusted or repaired;

and

metrological performance of the measuring instrument is

affected; and

(d) if the person causes the measuring instrument to be adjusted

or repaired--the adjustment or repair of the measuring

instrument is not performed by a servicing licensee or an

employee of a servicing licensee or, in the case of a utility

meter, by a utility meter verifier; and

(e) the person does not obliterate, or cause to be obliterated, any

verification mark that the measuring instrument bears.

Penalty: 40 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Defence

(4) Subsections (1) and (2) do not apply if the effect on the measuring

instrument can be corrected by normal operational adjustment of

the measuring instrument.

Note:

A defendant bears an evidential burden in relation to the matter in

subsection (4), see subsection 13.3(3) of the Criminal Code.

Part V--General provisions on using measurement

in trade

18H Overview

Overview of Part

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 29

(1) This Part regulates the use of measurement in trade generally.

(2) This Part deals with:

(a) articles that must be sold by measurement

(sections 18HB and 18HC); and

(b) the units of measurement that must be used for

certain transactions (section 18HD); and

for certain articles (section 18HE); and

(d) unreliable methods of measurement

(section 18HF); and

(e) the use of certain measuring instruments

(section 18HG); and

(f) measuring instruments and methods of

measurement used in monitoring compliance with

this Act (section 18HH).

(3) All trade measurement is to be a net measurement

(section 18HI).

18HA When is an article packed in advance ready for sale?

An article is packed in advance ready for sale once the article is

packed in the package in which it will be sold, regardless of

whether the package is marked with a measurement or a

representation (including a statement as to price) by which the

measurement of the article can be worked out.

18HB Certain articles must be sold by measure ment--articles

packed in advance ready for sale

Offence requiring fault element--seller

(1) A person commits an offence if:

Schedule 1 Trade measurement

30 National Measurement Amendment Bill 2008 No. , 2008

(a) the person sells an article that is packed in advance ready for

sale; and

(b) the packed article is of a class that, by regulation, must be

sold by measurement; and

(i) the package in which the article is sold is marked with a

price that is not determined by measurement; or

(ii) there is a marking on or near the receptacle in which the

packed article is contained that is marked with a price

that is not determined by measurement.

Penalty: 100 penalty units.

Strict liability offence--seller

(2) A person commits an offence if:

(a) the person sells an article that is packed in advance ready for

sale; and

(b) the packed article is of a class that, by regulation, must be

sold by measurement; and

(i) the package in which the article is sold is marked with a

price that is not determined by measurement; or

(ii) there is a marking on or near the receptacle in which the

packed article is contained that is marked with a price

that is not determined by measurement.

Penalty: 20 penalty units.

Offence requiring fault element--possession, offer or exposure for

sale

(3) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

measurement; and

(d) either:

(i) the package in which the article is sold is marked with a

price that is not determined by measurement; or

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 31

(ii) there is a marking on or near the receptacle in which the

packed article is contained that is marked with a price

that is not determined by measurement.

Penalty: 100 penalty units.

Strict liability offence--possession, offer or exposure for sale

(4) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

measurement; and

(d) either:

(i) the package in which the article is sold is marked with a

price that is not determined by measurement; or

(ii) there is a marking on or near the receptacle in which the

packed article is contained that is marked with a price

that is not determined by measurement.

Penalty: 20 penalty units.

(5) Subsections (2) and (4) are offences of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(6) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1), (2),

(3) and (4).

18HC Certain articles must be sold by measure ment--other articles

Offence requiring fault element

(1) A person commits an offence if:

(a) the person sells an article that is not packed in advance ready

for sale; and

(b) the article is of a class that, by regulation, must be sold by

measurement; and

Penalty: 100 penalty units.

Schedule 1 Trade measurement

32 National Measurement Amendment Bill 2008 No. , 2008

Strict liability offence

(2) A person commits an offence if:

(a) the person sells an article that is not packed in advance ready

for sale; and

(b) the article is of a class that, by regulation, must be sold by

measurement; and

Penalty: 20 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

18HD Transactions based on measurement to be in prescribed units

of measurement

(1) A person commits an offence if:

(a) the person sells an article (whether packed in advance ready

for sale or otherwise) or a utility for a price determined by

reference to measurement of the article; and

(b) a unit of measurement is prescribed by the regulations for

that article or utility, or articles or utilities of that class, for

the purposes of this paragraph; and

measurement of the article or utility in that unit of

measurement.

Penalty: 40 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(3) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to an offence against subsection (1).

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 33

18HE Measuring instruments used in transactions to have

prescribed scale inte rvals

(1) A person commits an offence if:

(a) the person sells an article (whether packed in advance ready

for sale or otherwise) or a utility for a price determined by

reference to measurement of the article; and

(b) the regulations prescribe scale intervals for measuring

instruments used in the measurement of the article or utility,

or articles or utilities of that class; and

measurement of the article or utility using a measuring

instrument of those scale intervals.

Penalty: 40 penalty units.

(2) Subsection (1) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(3) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to an offence against subsection (1).

18HF Unreliable methods of measure ment

(1) The regulations may prescribe unreliable methods of measurement

of an article or utility or a class of articles or utilities.

(2) If the regulations make provision under subsection (1):

(a) the unreliable method of measurement must not be used in

working out the amount of any tax (however described)

payable by reference to measurement of the article or utility

or an article or utility of that class; and

(b) no contract, dealing or other transaction is to be made or

entered into that requires the unreliable method of

measurement to be used in measuring the article or utility or

an article or utility of that class for the purpose of

determining the consideration under that contract, dealing or

transaction; and

unreliable method to be used for that purpose, the contract is

null and void.

Schedule 1 Trade measurement

34 National Measurement Amendment Bill 2008 No. , 2008

18HG Limiting use of certain measuring instruments

Offence requiring fault element

(1) A person commits an offence if:

(a) a measuring instrument is of a class that, by regulation, must

only be used for prescribed purposes; and

(b) the person uses the measuring instrument for trade for

another purpose.

Penalty: 100 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) a measuring instrument is of a class that, by regulation, must

only be used for prescribed purposes; and

(b) the person uses the measuring instrument for trade for

another purpose.

Penalty: 20 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

18HH Measuring instruments and methods of measure ment used in

monitoring compliance with the Act

(1) The regulations may prescribe:

(a) measuring instruments, or classes of measuring instruments,

to be used by trade measurement inspectors in the

measurement of an article or utility, or a class of articles or

utilities, for the purpose of monitoring compliance with this

Act; and

(b) the methods of measurement of an article or utility, or a class

of articles or utilities, to be used by trade measurement

inspectors in monitoring compliance with this Act.

(2) All courts, judges and persons acting judicially must presume that:

(a) a measuring instrument or a class of measuring instruments

prescribed for an article or utility, or a class of articles or

utilities, will, if used correctly, produce an accurate

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 35

measurement of the article or utility, or articles or utilities of

that class; and

(b) the use of the method of measurement prescribed for an

article or utility, or a class of articles or utilities, will produce

an accurate measurement of the article or utility, or articles or

utilities of that class.

18HI Articles sold by measure ment to be sold by net measurement

Offence requiring fault element--sellers

(1) A person commits an offence if:

(a) the person sells an article (whether packed in advance ready

for sale or otherwise) for a price determined by reference to

measurement of the article; and

(b) the price is not determined by reference to the net

measurement of the article when sold or, if an alternative

time is prescribed in relation to the article, or articles of that

class, at that alternative time.

Penalty: 100 penalty units.

Strict liability offence--sellers

(2) A person commits an offence if:

(a) the person sells an article (whether packed in advance ready

for sale or otherwise) for a price determined by reference to

measurement of the article; and

(b) the price is not determined by reference to the net

measurement of the article when sold or, if an alternative

time is prescribed in relation to the article, or articles of that

class, at that alternative time.

Penalty: 20 penalty units.

Offence requiring fault element--possession, offer or exposure for

sale

(3) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale, at a particular time (whether packed in advance

Schedule 1 Trade measurement

36 National Measurement Amendment Bill 2008 No. , 2008

ready for sale or otherwise) for a price determined by

reference to measurement of the article; and

(b) the price is not determined by reference to the net

measurement of the article at that time or, if an alternative

time is prescribed in relation to the article, or articles of that

class, at that alternative time.

Penalty: 100 penalty units.

Strict liability offence--possession, offer or exposure for sale

(4) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale, at a particular time (whether packed in advance

ready for sale or otherwise) for a price determined by

reference to measurement of the article; and

(b) the price is not determined by reference to the net

measurement of the article at that time or, if an alternative

time is prescribed in relation to the article, or articles of that

class, at that alternative time.

Penalty: 20 penalty units.

(5) Subsections (2) and (4) are offences of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(6) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1), (2),

(3) and (4).

Part VI--Articles packed in advance ready for sale

Division 1--Overview of Part

18J Overvie w

Overview of Part

(1) This Part sets out the requirements for articles that are packed

in advance ready for sale.

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 37

(2) If an article is packed in advance ready for sale, the package

must be marked with certain information such as the name and

address of the packer. The use of certain prescribed

expressions in relation to measurement on the package is

prohibited (see Division 2).

(3) It is an offence to pack, import or sell or possess, offer or

expose for sale a package that contains less than the

measurement represented. There are different methods for

determining whether there is a shortfall. Division 3 deals with

one of these methods, the Average Quantity System.

Division 4 deals with cases where the existence of a shortfall

is determined using other methods.

(4) A permit may be obtained under Division 5 to import or sell

or possess, offer or expose for sale certain articles that have

been packed in advance ready for sale and that would

otherwise breach Division 2.

Division 2--Marking packed articles

Subdivision 2-A--Required package information

18JA Package must be marked with required package

information--packer

Offence requiring fault element

(1) A person commits an offence if:

(a) the person packs an article; and

(b) the article is packed in advance ready for sale; and

following kinds of information is prescribed:

(i) the name and address of the person who packed the

article or on whose behalf the article was packed;

(ii) the measurement of the article;

(iii) any other information prescribed for the purposes of this

subparagraph; and

(d) the person does not mark the package with that information.

Schedule 1 Trade measurement

38 National Measurement Amendment Bill 2008 No. , 2008

Penalty: 100 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person packs an article; and

(b) the article is packed in advance ready for sale; and

following kinds of information is prescribed:

(i) the name and address of the person who packed the

article or on whose behalf the article was packed;

(ii) the measurement of the article;

(iii) any other information prescribed for the purposes of this

subparagraph; and

(d) the person does not mark the package with that information.

Penalty: 20 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Subsections (1) and (2) do not apply as a result of

subparagraph (1)(c)(i) or (2)(c)(i) if the person knows that the

article is to be sold on the premises on which it was packed for the

consumption or use of the purchaser.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4), see subsection 13.3(3) of the Criminal Code.

(5) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

18JB Package must be marked with require d package

information--importer

(1) A person commits an offence if:

(a) the person imports into Australia an article; and

(b) the article is packed in advance ready for sale; and

following kinds of information is prescribed:

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 39

(i) the name and address of the person who packed the

article or on whose behalf the article was packed;

(ii) the measurement of the article;

(iii) any other information prescribed for the purposes of this

subparagraph; and

(d) the package is not marked with that information (whether

before the article is imported, or by the person after the

article is imported).

Penalty: 100 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person imports into Australia an article; and

(b) the article is packed in advance ready for sale; and

following kinds of information is prescribed:

(i) the name and address of the person who packed the

article or on whose behalf the article was packed;

(ii) the measurement of the article;

(iii) any other information prescribed for the purposes of this

subparagraph; and

(d) the package is not marked with that information (whether

before the article is imported, or by the person after the

article is imported).

Penalty: 20 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Subsections (1) and (2) do not apply if a permit in relation to the

packed article has been issued under section 18JX.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4), see subsection 13.3(3) of the Criminal Code.

Schedule 1 Trade measurement

40 National Measurement Amendment Bill 2008 No. , 2008

18JC Package must be marked with required package

information--seller

Offence requiring fault element

(1) A person commits an offence if:

(a) the person sells an article; and

(b) the article has been packed in advance ready for sale; and

following kinds of information is prescribed:

(i) the name and address of the person who packed the

article or on whose behalf the article was packed;

(ii) the measurement of the article;

(iii) the price of the article;

(iv) any other information prescribed for the purposes of this

subparagraph; and

(d) the package is not marked with that information.

Penalty: 100 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person sells an article; and

(b) the article has been packed in advance ready for sale; and

following kinds of information is prescribed:

(i) the name and address of the person who packed the

article or on whose behalf the article was packed;

(ii) the measurement of the article;

(iii) the price of the article;

(iv) any other information prescribed for the purposes of this

subparagraph; and

(d) the package is not marked with that information.

Penalty: 20 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 41

(4) Subsections (1) and (2) do not apply if a permit in relation to the

packed article has been issued under section 18JX.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4), see subsection 13.3(3) of the Criminal Code.

(5) Subsections (1) and (2) do not apply as a result of

subparagraph (1)(c)(i) or (2)(c)(i) if:

(a) the article is sold on the premises on which it was packed for

the consumption or use of the purchaser; or

(b) the article was packed outside Australia.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (5), see subsection 13.3(3) of the Criminal Code.

(6) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

18JD Package must be marked with required package

information--possession, offer or exposure for sale

Offence requiring fault element

(1) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

following kinds of information is prescribed:

(i) the name and address of the person who packed the

article or on whose behalf the article was packed;

(ii) the measurement of the article;

(iii) the price of the article;

(iv) any other information prescribed for the purposes of this

subparagraph; and

(d) the package is not marked with that information.

Penalty: 100 penalty units.

Strict liability offence

(2) A person commits an offence if:

Schedule 1 Trade measurement

42 National Measurement Amendment Bill 2008 No. , 2008

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

following kinds of information is prescribed:

(i) the name and address of the person who packed the

article or on whose behalf the article was packed;

(ii) the measurement of the article;

(iii) the price of the article;

(iv) any other information prescribed for the purposes of this

subparagraph; and

(d) the package is not marked with that information.

Penalty: 20 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Subsections (1) and (2) do not apply if a permit in relation to the

packed article has been issued under section 18JX.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4), see subsection 13.3(3) of the Criminal Code.

(5) Subsections (1) and (2) do not apply as a result of

subparagraph (1)(c)(i) or (2)(c)(i) if:

(a) the article is to be sold on the premises on which it was

packed for the consumption or use of the purchaser; or

(b) the article was packed outside Australia.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (5), see subsection 13.3(3) of the Criminal Code.

(6) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

18JE Package must be marked in prescribed manner

Offence requiring fault element

(1) A person commits an offence if:

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 43

(a) the person would commit an offence under section 18JA,

18JB, 18JC or 18JD unless the person marked a package with

information; and

(b) the manner in which that information is to be marked on the

package is prescribed by the regulations; and

Penalty: 100 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person would commit an offence under section 18JA,

18JB, 18JC or 18JD unless the person marked a package with

information; and

(b) the manner in which that information is to be marked on the

package is prescribed by the regulations; and

Penalty: 20 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Subsections (1) and (2) do not apply if a permit in relation to the

packed article has been issued under section 18JX.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4), see subsection 13.3(3) of the Criminal Code.

Subdivision 2-B--Prohibited expressions

18JF Using prohibited expressions--packer

Offence requiring fault element

(1) A person commits an offence if:

(a) the person packs an article; and

(b) the article is packed in advance ready for sale; and

expression in relation to the measurement of the article is

prescribed for the purposes of this paragraph; and

(d) the person marks the package with the prohibited expression.

Schedule 1 Trade measurement

44 National Measurement Amendment Bill 2008 No. , 2008

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person packs an article; and

(b) the article is packed in advance ready for sale; and

expression in relation to the measurement of the article is

prescribed for the purposes of this paragraph; and

(d) the person marks the package with the prohibited expression.

Penalty: 40 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

18JG Using prohibited expressions--seller

Offence requiring fault element

(1) A person commits an offence if:

(a) the person sells an article; and

(b) the article has been packed in advance ready for sale; and

expression in relation to the measurement of the article is

prescribed for the purposes of this paragraph; and

(d) the package is marked with the prohibited expression.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person sells an article; and

(b) the article has been packed in advance ready for sale; and

Trade measurement Schedule 1

National Measurement Amendment Bill 2008 No. , 2008 45

expression in relation to the measurement of the article is

prescribed for the purposes of this paragraph; and

(d) the package is marked with the prohibited expression.

Penalty: 40 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Subsections (1) and (2) do not apply if a permit in relation to the

packed article has been issued under section 18JX.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4), see subsection 13.3(3) of the Criminal Code.

(5) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

18JH Using prohibited expressions--possession, offer or exposure

for sale

Offence requiring fault element

(1) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

expression in relation to the measurement of the article is

prescribed for the purposes of this paragraph; and

(d) the package is marked with the prohibited expression.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

Schedule 1 Trade measurement

46 National Measurement Amendment Bill 2008 No. , 2008

expression in relation to the measurement of the article is

prescribed for the purposes of this paragraph; and

(d) the package is marked with the prohibited expression.

Penalty: 40 penalty units.

(3) Subsection (2) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Subsections (1) and (2) do not apply if a permit in relation to the

packed article has been issued under section 18JX.

Note:

A defendant bears an evidential burden in relation to the matters in

subsection (4), see subsection 13.3(3) of the Criminal Code.

(5) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

Division 3--Average Quantity System for packed articles

Subdivision 3-A--Preliminary

18JI Overvie w of Division

Overview of Division

(1) If an article is packed in advance ready for sale, the package

may be marked with an AQS mark.

(2) AQS stands for Average Quantity System. It is an

internationally recognised system for sampling and testing

groups of packages to determine whether, on average, they

contain the quantities with which they are marked.

(3) By marking a package with an AQS mark, a person represents

that if the package is included in a group of like packages

sampled and tested in accordance with AQS procedures, the

group will be found on average to contain a measurement at

least equal to the marked measurement.

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National Measurement Amendment Bill 2008 No. , 2008 47

(4) This Division contains offences to deal with cases where this

is not so (see Subdivision 3-C).

(5) This Division also contains offences to deal with cases where

misleading marks are used, or an AQS mark is placed in the

wrong place (see Subdivision 3-B).

Subdivision 3-B--AQS marks

18JJ What is an AQS mark?

An AQS mark is a mark prescribed by the regulations as an AQS

mark.

18JK AQS mark must be used in accordance with regulations

(1) The regulations may prescribe where an AQS mark is to be

marked.

Offence requiring fault element

(2) A person commits an offence if:

(a) the person marks an AQS mark on a package; and

(b) the marking is done otherwise than in accordance with the

regulations.

Penalty: 100 penalty units.

Strict liability offence

(3) A person commits an offence if:

(a) the person marks an AQS mark on a package; and

(b) the marking is done otherwise than in accordance with the

regulations.

Penalty: 20 penalty units.

(4) Subsection (3) is an offence of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

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48 National Measurement Amendment Bill 2008 No. , 2008

18JL Using misleading marks

Offence requiring fault element--packer

(1) A person commits an offence if the person:

(a) packs an article in advance ready for sale; and

(b) marks the article with a mark that is not an AQS mark, but

that is likely to give the impression that it is an AQS mark.

Penalty: 200 penalty units.

Strict liability offence--packer

(2) A person commits an offence if the person:

(a) packs an article in advance ready for sale; and

(b) marks the article with a mark that is not an AQS mark, but

that is likely to give the impression that it is an AQS mark.

Penalty: 40 penalty units.

Offence requiring fault element--possession, offer or exposure for

sale

(3) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

but that is likely to give the impression that it is an AQS

mark.

Penalty: 200 penalty units.

Strict liability offence--possession, offer or exposure for sale

(4) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

but that is likely to give the impression that it is an AQS

mark.

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National Measurement Amendment Bill 2008 No. , 2008 49

Penalty: 40 penalty units.

Offence requiring fault element--seller

(5) A person commits an offence if:

(a) the person sells an article; and

(b) the article has been packed in advance ready for sale; and

but that is likely to give the impression that it is an AQS

mark.

Penalty: 200 penalty units.

Strict liability offence--seller

(6) A person commits an offence if:

(a) the person sells an article; and

(b) the article has been packed in advance ready for sale; and

but that is likely to give the impression that it is an AQS

mark.

Penalty: 40 penalty units.

(7) Subsections (2), (4) and (6) are offences of strict liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

Subdivision 3-C--Shortfall

18JM Shortfall offence--packer

Offence requiring fault element

(1) A person commits an offence if:

(a) the person packs an article; and

(b) the article is packed in advance ready for sale; and

(d) the person:

(i) marks the package with a measurement or minimum

measurement of the article contained in the package; or

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50 National Measurement Amendment Bill 2008 No. , 2008

(ii) marks the package with a representation (including a

statement as to price) by which the measurement of the

article contained in the package can be worked out; or

(iii) otherwise, by any document or statement, represents the

measurement or minimum measurement of the article

contained in the package, or makes a representation

(including a statement as to price) by which the

measurement of the article contained in the package can

be worked out; and

(e) the package is one of a group of packages of the same kind

that, once packed, are on the same premises or in the same

vehicle; and

(f) the number of packages in the group equals or exceeds the

AQS threshold; and

(g) a sample of the group, selected in accordance with AQS

sampling procedures, fails testing in accordance with AQS

test procedures.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person packs an article; and

(b) the article is packed in advance ready for sale; and

(d) the person:

(i) marks the package with a measurement or minimum

measurement of the article contained in the package; or

(ii) marks the package with a representation (including a

statement as to price) by which the measurement of the

article contained in the package can be worked out; or

(iii) otherwise, by any document or statement, represents the

measurement or minimum measurement of the article

contained in the package, or makes a representation

(including a statement as to price) by which the

measurement of the article contained in the package can

be worked out; and

(e) the package is one of a group of packages of the same kind

that, once packed, are on the same premises or in the same

vehicle; and

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National Measurement Amendment Bill 2008 No. , 2008 51

(f) the number of packages in the group equals or exceeds the

AQS threshold; and

(g) a sample of the group, selected in accordance with AQS

sampling procedures, fails testing in accordance with AQS

test procedures.

Penalty: 40 penalty units.

(3) Subject to subsection (4), subsection (2) is an offence of strict

liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and

(2)(f).

Note:

For absolute liability, see section 6.2 of the Criminal Code.

(5) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

18JN Shortfall offence--importer

Offence requiring fault element

(1) A person commits an offence if:

(a) the person imports into Australia an article; and

(b) the article has been packed in advance ready for sale; and

(d) one of the following circumstances exist:

(i) the package is marked with a measurement or minimum

measurement of the article contained in the package;

(ii) the package is marked with a representation (including a

statement as to price) by which the measurement of the

article contained in the package can be worked out;

(iii) a representation is otherwise made, by any document or

statement, about the measurement or minimum

measurement of the article contained in the package;

(iv) a representation is otherwise made (including a

statement as to price) by which the measurement of the

article contained in the package can be worked out; and

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52 National Measurement Amendment Bill 2008 No. , 2008

(e) the package is one of a group of packages of the same kind

that, once imported, are on the same premises or in the same

vehicle; and

(f) the number of packages in the group equals or exceeds the

AQS threshold; and

(g) a sample of the group, selected in accordance with AQS

sampling procedures, fails testing in accordance with AQS

test procedures.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person imports into Australia an article; and

(b) the article has been packed in advance ready for sale; and

(d) one of the following circumstances exist:

(i) the package is marked with a measurement or minimum

measurement of the article contained in the package;

(ii) the package is marked with a representation (including a

statement as to price) by which the measurement of the

article contained in the package can be worked out;

(iii) a representation is otherwise made, by any document or

statement, about the measurement or minimum

measurement of the article contained in the package;

(iv) a representation is otherwise made (including a

statement as to price) by which the measurement of the

article contained in the package can be worked out; and

(e) the package is one of a group of packages of the same kind

that, once imported, are on the same premises or in the same

vehicle; and

(f) the number of packages in the group equals or exceeds the

AQS threshold; and

(g) a sample of the group, selected in accordance with AQS

sampling procedures, fails testing in accordance with AQS

test procedures.

Penalty: 40 penalty units.

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National Measurement Amendment Bill 2008 No. , 2008 53

(3) Subject to subsection (4), subsection (2) is an offence of strict

liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and

(2)(f).

Note:

For absolute liability, see section 6.2 of the Criminal Code.

18JO Shortfall offence--possession, offer or exposure for sale

Offence requiring fault element

(1) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

(d) the package is marked with:

(i) a measurement or minimum measurement of the article

contained in the package; or

(ii) a representation (including a statement as to price) by

which the measurement of the article contained in the

package can be worked out; and

(e) the package is one of a group of packages of the same kind

that, at the time of possession, offer or exposure, are on the

same premises or in the same vehicle; and

(f) the number of packages in the group equals or exceeds the

AQS threshold; and

(g) a sample of the group, selected in accordance with AQS

sampling procedures, fails testing in accordance with AQS

test procedures.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person possesses an article for sale, or offers or exposes it

for sale; and

(b) the article has been packed in advance ready for sale; and

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54 National Measurement Amendment Bill 2008 No. , 2008

(d) the package is marked with:

(i) a measurement or minimum measurement of the article

contained in the package; or

(ii) a representation (including a statement as to price) by

which the measurement of the article contained in the

package can be worked out; and

(e) the package is one of a group of packages of the same kind

that, at the time of possession, offer or exposure, are on the

same premises or in the same vehicle; and

(f) the number of packages in the group equals or exceeds the

AQS threshold; and

(g) a sample of the group, selected in accordance with AQS

sampling procedures, fails testing in accordance with AQS

test procedures.

Penalty: 40 penalty units.

(3) Subject to subsection (4), subsection (2) is an offence of strict

liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

(4) Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and

(2)(f).

Note:

For absolute liability, see section 6.2 of the Criminal Code.

(5) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

18JP Shortfall offence--sale

Offence requiring fault element

(1) A person commits an offence if:

(a) the person sells an article; and

(b) the article has been packed in advance ready for sale; and

(d) the package is marked with:

(i) a measurement or minimum measurement of the article

contained in the package; or

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National Measurement Amendment Bill 2008 No. , 2008 55

(ii) a representation (including a statement as to price) by

which the measurement of the article contained in the

package can be worked out; and

(e) the package is one of a group of packages of the same kind

that, at the time of sale, are on the same premises or in the

same vehicle; and

(f) the number of packages in the group equals or exceeds the

AQS threshold; and

(g) a sample of the group, selected in accordance with AQS

sampling procedures, fails testing in accordance with AQS

test procedures.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person sells an article; and

(b) the article has been packed in advance ready for sale; and

(d) the package is marked with:

(i) a measurement or minimum measurement of the article

contained in the package; or

(ii) a representation (including a statement as to price) by

which the measurement of the article contained in the

package can be worked out; and

(e) the package is one of a group of packages of the same kind

that, at the time of sale, are on the same premises or in the

same vehicle; and

(f) the number of packages in the group equals or exceeds the

AQS threshold; and

(g) a sample of the group, selected in accordance with AQS

sampling procedures, fails testing in accordance with AQS

test procedures.

Penalty: 40 penalty units.

(3) Subject to subsection (4), subsection (2) is an offence of strict

liability.

Note:

For strict liability, see section 6.1 of the Criminal Code.

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56 National Measurement Amendment Bill 2008 No. , 2008

(4) Absolute liability applies to paragraphs (1)(e), (1)(f), (2)(e) and

(2)(f).

Note:

For absolute liability, see section 6.2 of the Criminal Code.

(5) Section 15.2 (extended geographical jurisdiction--category B) of

the Criminal Code applies to offences against subsections (1) and

(2).

Division 4--Packed articles not marked with AQS mark

Subdivision 4-A--Overview of Division

18JQ Overview

Overview of Division

(1) If an article that has been packed in advance ready for sale is

not marked with an AQS mark, the existence of a shortfall is

determined using a nationally recognised system of sampling

and testing groups of packages.

(2) If the group of packages is too small to allow meaningful

testing in this way national single article test procedures are

used.

(3) This Division contains a series of shortfall offences based on

these procedures for determining whether there is a shortfall.

Subdivision 4-B--Shortfall offences

18JR When is the re a shortfall in the measurement of a packed

article?

There is a shortfall in the measurement of an article that has been

packed in advance ready for sale and that is not marked with an

AQS mark if:

(a) all of the following conditions are met:

(i) the package is one of a group of packages of the same

kind that are on the same premises or in the same

vehicle;

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National Measurement Amendment Bill 2008 No. , 2008 57

(ii) the number of packages in the group equals or exceeds

the national test threshold;

(iii) a sample of the group, selected in accordance with

national sampling procedures, is tested in accordance

with national group test procedures and the sample fails;

(b) the package is tested in accordance with national single

article test procedures and the package fails.

18JS Shortfall offence--packer

Offence requiring fault element

(1) A person commits an offence if:

(a) the person packs an article; and

(b) the article is packed in advance ready for sale; and

(d) the person:

(i) marks the package with a measurement or minimum

measurement of the article contained in the package; or

(ii) marks the package with a representation (including a

statement as to price) by which the measurement of the

article contained in the package can be worked out; or

(iii) otherwise, by any document or statement, represents the

measurement or minimum measurement of the article

contained in the package, or makes a representation

(including a statement as to price) by which the

measurement of the article contained in the package can

be worked out; and

(e) there is a shortfall in the measurement of the article contained

in the package.

Penalty: 200 penalty units.

Strict liability offence

(2) A person commits an offence if:

(a) the person packs an article; and

(b) the article is packed in advance ready for sale; and

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58 National Measurement Amendment Bill 2008 No. , 2008

(d) the person:

(i) marks the package with a measurement or minimum

measurement of the article contained in the package; or

(ii) marks the package with a representation (including a

statement as to price) by which the measurement of the

article contained in the package can be worked out; or

(iii) otherwise, by any document or statement, represents the

measurement or minimum measurement of the article

contained in the package, or makes a representation

(including a statement as to price) by which the

measurement of the article contained in the package can

be worked out; and

(e) there is a shortfall in the measurement of the article contained

Commonwealth of Australia Bills

NATIONAL MEASUREMENT AMENDMENT BILL 2008